The Best of the Government's 'We Cannot Confirm Nor Deny' Claims

In a spectacular episode for history buffs and transparency nuts alike, Radiolab posted an episode yesterday that explores the Cold War roots of the Glomar “neither confirm nor deny” response to FOIA requests. Here are some of the most notable and bizarre Glomar responses that MuckRock users have received.

Whether a document exists is a yes or no question. But for federal agencies, particularly ones that handle sensitive information, that question can get a bit more metaphysical. Via the “Glomar” response, officials supply a cliff-hanging “neither confirm nor deny” semi-answer in cases when they deem the existence or non-existence of documents to be a classified matter. A Glomar might seem like an unsatisfying rejection, but it can shed considerable light on the agencies themselves.

Based on excerpts from the NSA FOIA handbook, Glomar is the government’s option to “neither confirm or deny the existence of responsive records if that confirmation itself will reveal a classified fact.”

“The fact of the existence or non-existence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure,” quoth the CIA, as it has in dozens of other requests, including on its not-so-secret drone strikes and South African revolutionary Neville Alexander.

The NSA’s Glomar bonanza in response to post-Snowden requests for personal metadata has garnered considerable attention. But the agency uses Glomar in response to more routine requests, as well. For example, the NSA rejected MuckRock’s request for records on Internet activist Aaron Swartz. Investigative records typically become releasable upon an individual’s death, but the NSA insists that the sensitivity of its activities justifies a Glomar in virtually all cases.

In its response to the Swartz request, the NSA FOIA office wrote that the “classified nature of the National Security Agency’s efforts prevents us from either confirming or denying the existence of intelligence records responsive to your request, or whether any specific technique or method is employed in those efforts.” The agency’s Glomar guidelines offer particular steps for FOIA officers to take in response to such requests, depending on whether the individual is a U.S. citizen or foreign resident, among other distinguishing characteristics.

It’s not just the intelligence community, though, that declines to confirm or deny FOIA requests. The United States Citizenship and Immigration Services (USCIS) dedicates a section of its FOIA manual to Glomar guidance, which includes a snapshot of the term’s history as explored by Radiolab:

USCIS specifically directs its FOIA officers to “not use the word ‘Glomar’ or the particular language of the ‘Glomar response’ in these situations.”

We would hope the CDC has at least one list of all biosafety labs in the country. While the existence of such a list is hardly a secret on the level of the NSA’s dragnet, the agency responded that it “neither confirms nor denies the existence of such records.”

These neither here nor there responses can put agencies through logical acrobatics and contortions. When the NSA Glomar’d another MuckRock request for Senator Dianne Feinstein’s telephone records, filed after the senator claimed the NSA call records program was merely “the type of information found on a telephone bill,” the agency’s response was a bit longer than usual. Since the Snowden leaks and Senator Feinstein’s remarks had already made its metadata programs a matter of public knowledge, the NSA felt compelled to substantiate this particular Glomar.

“Any positive or negative response on a request-by-request basis would allow our adversaries to accumulate information and draw conclusions about NSA’s technical capabilities, sources, and methods. Our adversaries are likely to evaluate all public responses related to these programs,” the NSA FOIA office wrote. “Were we to provide positive or negative responses to requests such as yours, our adversaries’ compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security.”

MuckRock is continuing to press for more information about how agencies across the federal government interpret and apply the Glomar response. Last we checked, the fact or existence of FOIA procedures is pretty well settled.

MuckRock was one of Freedom of the Press Foundation's first journalism beneficiaries. Curious as to how other agencies define Glomar? So are they! You can help them submit requests for FOIA manuals and guidebooks by joining MuckRock today.